119 Ga. 973 | Ga. | 1904
C. W. McGouirk presented to the superior court of Douglas county an application for a writ of quo warranto to inquire into the right, of M. L. Hathcock to the office of sheriff of that county, to which office the applicant, claimed he had been duly, elected on the first Wednesday in October, 1.902. The court pissed an order calling on Hathcock to show cause on the 11th day of April, 190.3,-why the writ should not issue, and service was. perfected .ón Hathcock-on April 6,1903. On April 11,1903,
Substantially the same objections raised by the demurrers were asserted in the motion to dismiss and the motion to vacate the order overruling the first demurrer. Both the application for leave to file and the information distinctly allege that applicant received a majority of the legal votes cast in the election, and no' hint from the pleadings of applicant would suggest the slightest color of authority for respondent to hold the office. In all of the,reported cases in this State the defeated candidate was attempting by quo warranto to either declare the office vacant, or sustain his right to the same because of certain alleged matters dehors the certificate of the consolidating board declaring the election of his opponent. The case at bar, on the pleadings of applicant, is that of a successful candidate receiving a majority of the votes cast in the election, his election legally declared by the board of consolidation and duly certified to the Governor, and the issuance of a commission to his defeated adversary by the Governor without authority of law and in utter disregard of his right to the office. It needs no argument to sustain the contention that in such a case the appropriate remedy is by quo warranto proceedings. Civil Code, § 4878; High’s Ex. L. Bern. § 639 a. The issuance by the Governor of a commission, since the act of 1893, providing that in contested election cases the issues shall be adjudicated by the judge of the superior court, is a ministerial act; his duty is to issue the commission to the person whose election is certified by the proper authorities, in cases where there is no contest; and where there has been a contest, to the person adjudged by the special tribunal to determine the result by contest proceedings as entitled to the commission. Even when the Governor was the official to pass on the issues made in a proceeding of contest, it was held that a commission
Another objection urged in the demurrer was that the exclusive remedy of applicant was to have contested the election. It would seem absurd to say to a successful candidate for office, who has received a majority of the votes and who has been declared entitled to the office by the board of managers consolidating the election returns, that before he is entitled to the office he must file contest proceedings against his defeated adversary. The successful candidate is never the contestant; the certificate of the board of consolidation gives him a prima facie right to the office. But the defeated candidate may contest, and the result of such a proceeding is conclusive as to the person elected and entitled to the office. However, this is not the case raised in the pleadings by demurrer.
Where the purpose is to declare the office vacant, any citizen and taxpayer may file a proceeding in the nature of quo warranto. If the relator happens to be the defeated candidate, his right to file the information is in his capacity as an interested citizen, and not in his capacity of a defeated candidate. In the character of defeated candidate, he can claim no more than the right to have the opportunity to institute quo warranto proceedings against his opponent who was illegally installed in office, for the purpose of ousting him. Howell v. Pate, 119 Ga. 537, Davis v. City Council, 90 Ga. 824.
Judgment affirmed.